IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.1108 OF 2013 C/W CRIMINAL APPEAL NO.438 OF 2014 IN CRIMINAL APPEAL NO.1108 OF 2013 BETWEEN:
SRI JAI PRAKASH @ JAYAPRAKASH, SON OF ANKALA BASAPPA, AGED ABOUT 48 YEARS, AGRICULTURIST, RESIDENT OF HADIKERE VILLAGE, AMRUTHAPURA HOBLI, TARIKERE TALUK. ... APPELLANT (BY SRI C.H. HANUMANTHARAYA, ADVOCATE) AND:
THE STATE BY TARIKERE POLICE, REPRESENTED BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU. ... RESPONDENT (BY SMT. NAMITHA MAHESH B.G.,HIGH COURT GOVERNMENT PLEADER) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 05.10.2013 PASSED BY THE PRINCIPAL SESSIONS JUDGE, CHIKMAGALURU IN SESSIONS CASE NO.106 OF 2012 CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 304 PART I OF INDIAN PENAL CODE.
IN CRIMINAL APPEAL NO.438 OF 2014 BETWEEN:
H.P. CHANDRASHEKARAPPA, SON OF LATE PUTTAMALLAPPA, AGED ABOUT 35 YEARS, AGRICULTURISTS, HADIKERE VILLAGE, TARIKERE-57728, CHIKAMAGLUR. ... APPELLANT (BY SRI AMIT DESHPANDE, ADVOCATE) AND:
1. STATE OF KARNATAKA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR, BY INSPECTOR OF POLICE, TARIKERE POLICE STATION, TARIKERE-57728. CHIKAMAGLUR.
2. JAI PRAKASH @ JAYPRAKASH, AGED ABOUT 46 YEARS, SON OF ANKALA BASAPPA, AGRICULTURIST, RESIDENT OF HADIKERE VILLAGE, AMRUTHAPURA HOBLI, TARIKERE TALUK-57728. ... RESPONDENTS (BY SMT. NAMITHA MAHESH B.G., HIGH COURT GOVERNMENT PLEADER FOR RESPONDENT NO.1) SRI C.H. HANUMANTHARAYA, ADVOCATE FOR RESPONDENT NO.2) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377(3) OF CRIMINAL PROCEDURE CODE PRAYING TO SET ASIDE THE ORDER PASSED IN SESSIONS CASE NO.106 OF 2012 BY THE PRINCIPAL SESSIONS JUDGE, CHIKMAGALUR DATED 01.10.2013 AND CONSEQUENTLY TO CONVICT THE ACCUSED UNDER SECTION 302 OF INDIAN PENAL CODE BY ENHANCING THE SENTENCE TO LIFE IMPRISONMENT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 13.09.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:
JUDGMENT Criminal Appeal No.1108 of 2013 is filed by the accused challenging the judgment of conviction for the offence punishable under Section 304 Part I of Indian Penal Code, and sentencing him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5,00,000/-, dated 1.10.2013, on the file of the Principal Sessions Judge, Chikmagaluru.
2. Criminal Appeal No.438 of 2014 is filed by the complainant challenging the judgment of conviction dated 1.10.2013 on the file of the Principal Sessions Judge, Chikmagaluru, for the offence punishable under Section 304 Part I of Indian Penal Code instead of Section 302 of Indian Penal Code.
Brief facts of the case:
3. It is the case of the prosecution that on 5.8.2012, at about 5.00 p.m., deceased – Marulasiddappa and C.Ws.1 to 3 were talking near the peepul tree at Hadikere Village in Tarikere Taluk. At that time, the accused came in a motorcycle and stopped the motorcycle and demanded Rs.100/- from the deceased for the purpose of consuming alcohol, to which the deceased told that he has no amount and he does not owe any amount to him and he will not pay. Hence, the accused reacted that if he does not pay the money, he will kill him. The persons, who were present at the spot, including C.Ws.1 to 3, pacified the quarrel and sent the deceased to his house, which was situated on Nagenahalli Road.
4. It is the further case of the prosecution that when the deceased was proceeding to his house, the accused also went behind him abusing and when the deceased went near the gate of his house, the accused, by holding him, bit on his right hand and thereafter taking a fistful size stone, assaulted on the head of the deceased. As a result, the deceased collapsed and thereafter the accused dragged him here and there and by seeing C.Ws.1 to 3 coming along with other witnesses, throwing the stone he went away from that place. Thereafter, C.W.7 was called and after his arrival, the deceased was taken on motorcycle to Government Hospital, Tarikere. The doctor advised to take him to Nanjappa Hospital, Shimoga. When the deceased was taking the treatment at Nanjappa Hospital, on 6.8.2012, he breathed his last. C.W.7 told C.W.1 to go and file a complaint. Accordingly, he gave the complaint. The police have registered a case based on the complaint of C.W.1 and thereafter the police have investigated the matter and filed the charge-sheet against the accused for the offence punishable under Section 302 of Indian Penal Code. After filing of the charge-sheet, the case was committed to the Sessions Court and the accused was secured and he did not plead guilty and claimed trial.
5. The prosecution in order to prove the case examined P.Ws.1 to 16 and got marked Exs.P.1 to 18 and M.Os.1 to 3. During the course of cross-examination of the prosecution witnesses, the accused got marked Exs.D.1 to 3. After the closure of the evidence by the prosecution, the accused was examined under Section 313 of the Code of Criminal Procedure. The accused denied the incriminating materials and he did not choose to lead any evidence. Having heard the arguments of both the counsel, the Court below convicted the accused for the offence punishable under Section 304 Part I of Indian Penal Code instead of Section 302 of Indian Penal Code. Hence, both the accused and the complainant have filed these appeals before this Court.
6. In Criminal Appeal No.1108 of 2013 it is contended that the Court below failed to take note of the fact that the incident had taken place at 5.00 p.m. P.W.1 is the complainant and P.W.5 is the brother of the deceased, who took the deceased and admitted in Tarikere Government Hospital. P.W.8 is the doctor, who treated him and found abrasion injury over the middle of his forehead and referred the deceased for higher center for treatment. P.Ws.1 and 5 shifted the deceased to Nanjappa Hospital, Shimoga for higher treatment. In the said hospital, the deceased was operated on the back of right side of his head for the removal of blood clots but he could not recover and died in the hospital. The injuries mentioned in Ex.P.6 discloses that no external injuries were found on the body of the deceased. But P.W.12 has deposed in his evidence that when he conducted the post mortem over the body of the deceased, he noticed 12 injuries and injuries mentioned in Ex.P.6 is simple in nature. Hence, from the evidence of P.Ws.8 and 12, it is clear that no injuries had happened to the deceased at the alleged place of incident at Hadikere Village and whatever injuries which were shown in the post mortem had happened to the deceased only between the way of Tarikere and Shimoga when he was accompanied by P.Ws.1 and 5. But, the Court below totally lost its sight over the said crucial fact.
7. The other ground urged in the appeal memorandum is that the Court below erred in not going through the evidence of P.W.15 – Dr. Narayana Panji, who treated the deceased at Nanjappa Hospital. According to his evidence, the deceased had not sustained any injuries on his frontal region of his head, as deposed by the eyewitnesses. From the evidence of P.Ws.8, 12 and 15, the Trial Court ought to have considered that the deceased did not sustain any injuries at Hadikere Village as shown in Ex.P.12 i.e., post mortem report. But the said injuries were received by him between the way of Tarikere and Shimoga when he was accompanied by P.Ws.1 and 5. This shows that something fishy has taken place between the way of Tarikere and Shimoga and both P.Ws.1 and 5 have been suppressing true facts in order to achieve their illegal intentions.
8. The eyewitnesses being relatives and close friends of the deceased have not stopped the appellant from asking the deceased Rs.100/- in higher tune, have not stopped the appellant from following the deceased to 500 – 600 ft., have not prevented the appellant from biting the deceased, have not stopped the appellant from dragging the deceased on the ground and have not stopped the appellant from picking the stone. The incident had taken place for a period of 10 minutes. The conduct of the eyewitnesses suspects the very presence of the eyewitnesses and the unnatural conduct of the eyewitnesses in reacting to the situation and the same has been accepted by the Trial Court mechanically. The incident had taken place at 5.00 p.m. on 5.8.2012 and the complaint was lodged on 6.8.2012 at about 4.00 p.m. and the same has not been properly appreciated by the Court below.
9. The Court below has committed an error in accepting the evidence of the prosecution witnesses and erroneously invoked Section 304 Part I of Indian Penal Code. There were no fatal injuries present over the body of the deceased when he was brought to Tarikere Hospital for treatment. When there is a doubt in the case of the prosecution regarding nature of injuries, which are contrary to each other, the Trial Court ought not to have convicted the accused for the offence punishable under Section 304 Part I of Indian Penal Code. Hence, prayed this Court to set aside the judgment of conviction.
10. In Criminal Appeal No.438 of 2014 filed by the complainant – P.W.1, it is contended that the Court below has committed an error in bringing the case within the purview of Section 304 Part I of Indian Penal Code instead of Section 302 of Indian Penal Code. The evidence of P.Ws.1, 2 and 7 is consistent that the incident had not taken place in one place and at the first instance the galata was pacified and thereafter the accused went near the house of the deceased and assaulted him with the stone. Knowing fully well that the injuries caused to the deceased is likely to cause death, he assaulted on the head and the same is a vital part and the Court below has committed an error in coming to the conclusion that the accused did not assault on the vital part. The very approach of the Trial Court in bringing the case within the purview of Section 304 Part I of Indian Penal Code is erroneous. The accused has taken up a false defence that Rs.5,000/- was due from the deceased and it is the deceased, who took up the quarrel. Though this defence is rejected rightly by the Trial Court, but committed an error in convicting the accused for lesser offence. Hence, it is a fit case to set aside the conviction for the offence punishable under Section 304 Part I of Indian Penal Code and the accused is liable to be convicted for the offence punishable under Section 302 of Indian Penal Code.
11. The learned counsel appearing for the accused, in his argument he vehemently contended that the Court below has committed an error in accepting the evidence of P.Ws.1 to 3, 7 and 13. The names of witnesses, P.Ws.7 and 13 are not found in the complaint and hence it is clear that they were not the eyewitnesses. It is emerged in the evidence that P.W.5 asked P.W.1 to lodge the complaint and complaint was given on the next day belatedly. The genesis of the incident is suppressed by the prosecution. The accused also had sustained the fracture. The doctor, who was examined before the Court did not notice any blood stains and he only pointed out that it is a simple injury. The evidence of P.Ws.1 and 2 is clear that they did not make any reference of the presence of P.W.7 and so also in the evidence of P.W.3. In the complaint, presence of witnesses – P.Ws.7 and 13 does not find place. The evidence of the doctor – P.W.15, who conducted the surgery is against the evidence of P.Ws.8 and 11. The contradictions has not been considered by the Trial Court. Hence, it is a fit case to set aside the judgment of conviction by reversing the finding.
12. Learned High Court Government Pleader appearing for the State would submit that P.Ws.1 to 3, 7 and 13 are the eyewitnesses and P.W.5 was informed after the incident and he came to the spot and shifted the injured to the hospital along with P.W.1. The history given in terms of Ex.P.11 is fall from the bike and sustained injuries insofar as the accused is concerned. The doctor P.W.11 is also examined. The injuries are 12 in number in terms of post mortem report and doctor evidence i.e., the evidence of P.Ws.8 and 11 is clear with regard to treating the deceased as well as the accused. The Court below has committed an error in not convicting the accused for the offence punishable under Section 302 of Indian Penal Code.
13. The learned counsel appearing for the complainant would contend that the findings of the Trial Court in invoking Section 304 Part I of Indian Penal Code is erroneous. The very approach made by the Trial Court while discussing the case on hand in paragraph No.38 of the judgment is erroneous. The incident had not taken place in spur of the movement, as observed by the Trial Court since already the incident was pacified by the persons, who were present at the spot. Hence, it cannot be termed as spur of the movement.
14. The other contention is that the Court below has made an observation that the injuries are not on the vital part and the same is also erroneous. The head is also a vital part and the very observation of the Trial Court is erroneous. P.W.8 – doctor was re-examined and he states about not mentioning the name of the assailants by the accused and when the accused did not mention the name of the assailants, the accused cannot find fault with the case of the prosecution. It is further contended that throughout the defence while cross-examining the prosecution witnesses, it is the specific case of the defence that P.W.5 assaulted the accused. In 313 statement also, it is stated that P.W.5 assaulted the accused and not the deceased. When such being the defence, the very argument of the appellant’s counsel that the prosecution has suppressed the injuries sustained by the accused takes away the case of the prosecution, cannot be accepted.
15. In reply to the arguments of the State as well as the complainant’s counsel, the counsel appearing for the accused mainly contended that though it is emerged in the evidence that the accused had sustained the injury of fracture, the Court below did not take note of the same. In support of his contentions, he relied upon the judgment of the Apex Court in the case of STATE OF M.P. v. MISHRILAL (DEAD) AND OTHERS reported in (2003) 9 SCC 426 and brought to our notice paragraph No.19 of the judgment. Referring to the judgment, the counsel contended that there is no explanation about the injuries sustained by the accused. None of the prosecution witnesses have spoken about the injuries sustained by the accused. In the circumstances, non-explanation of the injuries sustained by the accused prove fatal to the prosecution case.
16. The counsel also relied upon the judgment of the Apex Court in the case of LAKSHMI SINGH AND OTHERS v. STATE OF BIHAR reported in (1976) 4 SCC 394 wherein it has been held as under:
“Failure of prosecution to explain the injuries caused to the accused - Case might be one of private defence”.
Learned counsel has also brought to our notice paragraph No.12 of the judgment. Referring to paragraph No.12 of the judgment, he would contend that there is no reasonable explanation by the prosecution, and it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused. It is further contended that the Apex Court held in the judgment that it is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused has sustained injuries in the course the same occurrence, non-explanation of such injuries by the prosecution is as manifest defect in the prosecution case and shows that the origin and genesis of the occurrence has been deliberately suppressed, which leads to irresistible conclusion that the prosecution has not come out with a true version of the occurrence. Hence, the Trial Court ought to have taken note of the same and ought to have invoked private defence. That has not been done. Hence, the very approach of the Trial Court is erroneous.
17. He also relied on the judgment of the Hon’ble Apex Court in the case of KRISHNEGOWDA AND OTHERS v. STATE OF KARNATAKA reported in (2017) 13 SCC 98.
He brought to our notice paragraph No.35 of the judgment and contended that the evidence is clear that the accused also had sustained injuries and there was no explanation on the part of the prosecution. The Investigating Officer further suppressed the fact that there was a direct evidence to show that the accused also sustained injuries and when the Investigating Officer suppressed the same, it is fatal to the case of the prosecution.
18. The counsel also relied on the judgment of the Hon’ble Apex Court in the case of PIRTHI v. STATE OF HARYANA reported in 1994 Supp (1) SCC 498, insofar as the sentence is concerned. The Court below in coming to a conclusion that the case comes under Section 304 Part I of Indian Penal Code erroneously sentence the accused for a period of seven years and also imposed heavy fine. Referring this judgment, he would contend that having taken note of the injuries sustained by the accused also, the offence at the most attracts Section 323 of Indian Penal Code taking into note of the injuries noticed by P.W.8, which is simple in nature. The Apex Court brought down the case within the purview of Section 323 of Indian Penal Code and in the case on hand also when the injuries were simple in nature, the Trial Court ought to have considered the offence under Section 323 of Indian Penal Code and not Section 304 Part I of Indian Penal Code.
19. Having heard the arguments of the counsel appearing for the accused, complainant and as well as the High Court Government Pleader for the State and in view of the rival contentions urged by the parties, this Court has to re-appreciate the oral and documentary evidence and after having considered the material on record, the points that arise for our consideration are:
(i) Whether the Court below has committed an error in convicting the accused for the offence punishable under Section 304 Part I of Indian Penal Code and it requires interference of this Court to acquit the accused?
(ii) Whether the Court below has committed an error in bringing the case within the purview of Section 304 Part I of Indian Penal Code instead of Section 302 of Indian Penal Code, as contended by the complainant in his appeal and it requires interference of this Court?
(iii) What order?
Point (i) to (iii):
20. The sum and substance of the case of the prosecution is that when the deceased was talking with other persons, the accused came in a motorcycle and stopped the motorcycle and demanded an amount of Rs.100/- to consume alcohol. When the deceased refused, the accused made galata with the deceased and the persons who were present at the spot have pacified the galata and advised the deceased to go to his house. When the deceased was proceeding towards his house, the accused followed him and again assaulted him with stone and also he bite his hand. As a result, the deceased fell down and seeing the persons who have witnessed the incident, the accused throwing the stone, which he picked at the spot, left the spot. Hence, based on the complaint of P.W.1, the case has been registered.
21. Keeping in view the contentions urged by both the counsel, this Court has to re-appreciate the evidence. Now let us consider both oral and documentary evidence available on record. P.W.1 is the complainant and also the eyewitness to the incident and the other eyewitnesses are P.Ws.2, 3, 7 and 13. The main contention of the accused counsel is that the names of P.Ws.7 and 13 are not mentioned in the complaint. On perusal of the complaint – Ex.P.1, the complainant who has been examined as P.W.1 has narrated the case of the prosecution that the accused came and demanded an amount of Rs.100/- with the deceased and the deceased did not pay the same. Hence, galata had taken place and thereafter he himself and other witnesses – P.Ws.2 and 3 have pacified the galata and sent the deceased towards his house. At that time, the accused followed him and assaulted him. No doubt in the complaint, the complainant has mentioned the name of P.W.2 and another Chandrashekarappa, S/o Basappa, but not mentioned the name of P.Ws.3 and 7. The evidence of P.W.3 is in consonance with the contents of Ex.P1. P.Ws.1 and 2’s evidence and the chief evidence is similar that the incident had taken place and thereafter secured C.W.7, who has been examined as P.W.5 and shifted the injured immediately to Tarikere Government Hospital and thereafter took to Shimoga Hospital.
22. In the cross-examination of P.W.1, it is elicited that P.Ws.14 and 16 are also his relatives and close friends. There was no rain on 5.8.2012 to 7.8.2012. There was no enmity or ill-will between the accused and the deceased prior to the death and at no point of time they have quarreled. It is further elicited that the distance between the peepul tree to the gate where the alleged incident had taken place was 500 – 600 feet and one can go within few minutes. It is also suggested that the deceased and his sons were living in a joint family and the same was admitted. It is further elicited that economically accused is also well off and many people were there near the peepul tree. The accused bite the right shoulder of the deceased forcefully.
23. In the cross-examination of P.W.1, it is elicited that the deceased sustained the injuries on his frontal region of the head and M.O.2 shirt has been handed over to the police by him. Near the peepul tree the galata took place between the accused and the deceased for about 20 seconds. Near the gate the galata took place for about 15 minutes. It is suggested in the cross-examination of P.W.1 that the accused politely requested the deceased to pay Rs.5,000/-, which was due to him for the work of the carpentry, which has been done to his house and the same was denied. It is further suggested that C.W.7 assaulted the accused by taking a club, which was lying there to his left leg and as a result of the same, he sustained the fracture.
24. In the cross-examination of P.W.2, it is elicited that when the accused was following the deceased, they did not try to prevent him before he reached the gate. When the accused obstructed near the gate, at that time, he was at a distance of about 10 feet. The accused might have taken 5 to 10 minutes after obstructing before assaulting with the stone. By the time they wanted to go and prevent the act of the accused, he finished obstructing, biting, assaulting and dragging. The accused assaulted with the stone on the right side of the frontal bone. After the assault, the accused ran towards Nagenahalli Village Road. When the accused was running, they did not try to apprehend him.
25. P.W.3 in his evidence states that he had been to Hadikere to meet the deceased in his house. There was a due of Rs.5,000/- from the deceased. He collected the same amount and thereafter, himself and the deceased came together to the bus stop. There he saw C.W.4, who was his father’s friend. In order to talk with him he went near Bayalu Rangamandira. The deceased went near the peepul’s tree katta, by that time P.Ws.1, 2 and C.W.3 also came there. They stood talking. At that time, the accused came on a motorbike and asked the deceased to pay Rs.100/- for consuming the alcohol. The deceased said that he is not having any money. In that connection, a galata started. P.Ws.1, 2 and C.W.3 pacified the quarrel and sent the deceased towards his house. He also witnessed the incident and abusing of the deceased by the accused.
26. In the cross-examination, he admits that when the accused was quarreling with the deceased, at that time, he was sitting near the Bayalu Rangamandira. By hearing the galata, he did not try to come and pacify the quarrel between the accused and the deceased. He was at a distance of 15 to 20 feet. It was suggested that C.W.7 assaulted the accused by taking a club, which was lying there to his left leg and as a result of the same, he sustained the fracture and the same was denied.
27. In the cross-examination of P.W.2 also, it is suggested that during the talk, C.W.7 pushed the deceased by saying that he has incurred the loan in the village and by murdering whether he wants to go to jail and the same was denied. It is further suggested that thereafter C.W.7 assaulted the accused by taking a club, which was lying there to his left leg and as a result of the same, he sustained the fracture, and the same was denied.
28. P.W.5 is the witness, who is C.W.7 also. In his evidence, he states that at about 5.30 p.m., P.W.1 and C.W.6 had called him over the phone and told that his brother has been assaulted by the accused with stone and he has fallen and asked him to come and immediately he rushed to the spot on his motorcycle. After shifting the injured to the hospital at Tarikere, he went to the Police Station. At that time, again he received a call from the P.W.1 that the doctor has advised to take the deceased to Shimoga hospital and asked him to come. Immediately he came back and shifted the deceased. In the cross- examination, it is elicited that he has not stated before the police as per Ex.D.1. It is elicited that the house in which the deceased was staying was constructed about two years back. It is suggested that the accused has worked worth of Rs.5,000/- as a carpenter in the said constructed house and the deceased had not given the amount to him and the same was denied. It is suggested that he himself assaulted the accused by taking a club, which was lying there to his left leg and as a result of the same, he sustained the fracture and the same was denied.
29. The other eyewitnesses according to the prosecution is P.W.7. P.W.7 also in his evidence states that in order to go to Tarikere, he was standing near the peepul tree katta waiting for the auto. At that time, the deceased, P.Ws.1, 2 and C.W.3 were also standing and talking. P.W.3 and C.W.4 were also near Bayalu Rangamandira and they were also talking. At that time, the accused came and demanded Rs.100/- from the deceased and he also reiterated the evidence of P.Ws.1 and 2. In the cross- examination, it is elicited that in his statement, he has stated before the police that the accused bit the right hand of the deceased. Except the said answer, nothing is elicited that he was not in the spot. He admits that he has not stated before the police as per Ex.D.2. There were no injuries found over the head of the deceased.
30. The other witness is P.W.13, who is none other than the son of the deceased. Though P.W.13 is a minor, the Court below, after satisfying that he is competent to give evidence, has examined him. It is his evidence that his deceased father and P.W.3 were talking about the arecanut business. At about 4.30 p.m., his deceased father and P.W.3 went towards the bus stand to send P.W.3. At about 5.30 p.m., when he was in his house, he heard a galata near the house of his gate. Immediately he went there. There he saw the accused and his deceased father. The accused abused in filthy language and thereafter assaulted his father. Immediately P.Ws.1 and 2, C.Ws.3 and 4 and others also came to the spot. Thereafter, he called his junior uncle who shifted the injured to the hospital.
31. In the cross-examination, it is elicited that distance between the house to the gate is about 25 meters and not 65 meters, as suggested. It is also elicited that he did not immediately try to inform about the incident to C.W.11 Prasanna. The deceased sustained injuries to the right side of the parietal region and at that time profuse bleeding was not there.
32. The main contention of the accused counsel is that P.Ws.7 and 13 are not the eyewitnesses. In the cross- examination of P.Ws.7 and 13, defence did not dispute their presence at the spot. In the cross-examination of P.W.7, defence counsel suggested that when the accused asked the money to the deceased, he asked very roughly. But the witness states that the deceased replied smoothly saying that he is not having any money and he will not give. Instead of disputing the very presence of P.W.7, the defence counsel itself suggested how talks were held between the deceased and the accused. Now he cannot contend that P.W.7 was not at the spot. It has to be noted that P.W.13 is the son of the deceased and his evidence is that after hearing the screaming sound he came and witnessed the incident. It has to be noted that the other eyewitnesses are P.Ws.1 to 3. In the cross-examination of P.Ws.1 to 3, the defence itself suggested that P.W.5 assaulted the accused and as a result he sustained the fracture.
33. The counsel appearing for the appellant – accused would contend that the prosecution failed to explain the injuries sustained by the accused. It is not the case of the accused that the deceased assaulted the accused. This question is also not accidentally put to the witness. But throughout in the defence, while cross- examining the prosecution witnesses, it is the case of the defence that P.W.5 assaulted the accused and not the deceased. When the specific defence was taken that P.W.5 assaulted the accused and sustained the injuries, no complaint was given against P.W.5. There is no material before the Court that the deceased only assaulted the accused.
34. The counsel appearing for the accused relied upon several judgments, which have been referred above. He would contend that there was no explanation on the part of the prosecution. If it is the case of the accused that the deceased only assaulted him, then there would have been force in the argument of the accused counsel. The contention is contrary to their own defence evidence. In the cross-examination of prosecution witnesses throughout, it is suggested that C.W.7 i.e., P.W.5 assaulted the accused. Accordingly, the principle laid down by the Apex Court in the case of LAKSHMI SINGH (supra), cannot be accepted.
35. It is not the case of the defence also that during the scuffle, the accused had sustained injuries or otherwise it is the case of the defence that the accused had sustained injuries when P.W.5 assaulted him. It is the evidence of P.Ws.1 to 3 and 13 that P.W.5 was not in the spot and P.W.5 was called immediately after the incident.
Thereafter, the deceased was shifted to Tarikere Hospital. In the cross-examination of P.W.5, no doubt it is suggested that he assaulted the accused by taking a club, which was lying there to the left side of his leg and as a result, he has sustained the injuries and the same was denied. None of the witnesses have admitted the suggestion of the defence that P.W.5 has assaulted the accused. In order to invoke private defence, there must be a life threat to the person or there must be a threat to the property of the accused and then only the Court can invoke Section 99 of Indian Penal Code to contend that there was a threat to his life and hence he has exercised the private defence. Throughout in the cross-examination of the prosecution witnesses, nowhere it is suggested that there was danger to the life of the accused. As a result, he exercised the private defence. But the counsel makes an effort to bring the case within the purview of exercising the private defence. But, there are no material before this Court.
36. Apart from that, it has to be noted that in the evidence of P.W.8-doctor who treated both the deceased as well as the accused, he has categorically deposed that both of them have come to the hospital with the history of assault. He examined the accused first and thereafter examined the deceased. He also found that the accused was having undisplaced fracture of fibula of left leg. In the re-examination, P.W.8 categorically states that when the accused came to the hospital he has not given the name of the person who assaulted him. Hence, it is clear that the accused did not mention the name of the deceased. But instead, throughout the defence, it is his case that P.W.5 had assaulted him with a club.
37. It is pertinent to note that the appellant counsel in his argument has vehemently contended that the doctor – P.W.12, who conducted autopsy, in his evidence states that he found ‘C’ shaped surgically sutured wound measuring 24 cms. in length with 19 intermittent suture in-situ with its concavity facing downwards, is present over right side of head, seen extending from a point placed 4 cm. above top of right ear to a point placed 2 cm. above and 8 cm. behind the level of top of right ear and the other injuries are simple in nature. He had mentioned that the injuries are 12 in number. But the doctor, who has treated the deceased and conducted the surgery, in his evidence states that when he saw the deceased, he was unconscious, and the patient had respiratory dis-stress and scalp hemotoma on the right side. He operated the patient for removal of the blood clots and the patient was kept in ICU and he was also kept in artificial ventilators. The deceased died due to brain injuries. He has given his opinion in terms of Ex.P.14 that the injuries which have been caused to the deceased on his head may be caused if a person has been assaulted with a stone.
38. In the cross-examination, it is elicited that the cerebral brain injuries can also be caused in a road traffic accident. It has to be noted that it is not the case of the defence that the deceased had sustained the injuries in the road traffic accident and the presence of the accused and witnesses has not been disputed by the defence. Instead, suggestion was made to the prosecution witnesses that C.W.7 assaulted the accused. When the presence of the accused was not disputed and when the evidence of eyewitnesses is consistent, the contention of the accused counsel cannot be accepted.
39. No doubt in the evidence of P.W.8 he states that on examination he found a fresh abrasion present over the front of middle of forehead. He states that the patient was suffering with high blood pressure. Even in spite of his treatment, the blood pressure did not reduce. As such, he referred him to higher centre. He further states that he has mentioned that the blood pressure increase may be due to head injury and he issued the wound certificate in terms of Ex.P.6. In the cross-examination, it is elicited that if a person has been hammered with a stone like M.O.1, there will be fracture of the skull as well as injury on the head. It is elicited that the accused also came with the history of assault.
40. P.W.11 is the doctor who treated the accused. It is his evidence that on 6.8.2012 at about 6.00 a.m., he found that the accused was having the alcoholic signs. On 7.8.2012, he was not found in the ward and the case sheet was also missing. On 8.8.2012, some unknown person came and returned the case sheet in the counter. In the cross-examination, it is elicited that he has not filed any complaint when the accused was missing along with the case sheet. When he examined the accused, no abrasions were found on the body of the accused. It is further elicited that the accused got admitted in the hospital with the history of assault. It is also elicited that if a person has been assaulted with a sharp edged blunt club, the injury mentioned in Ex.P.9 may cause.
41. Having considered the evidence of P.Ws.8, 11, 12 and 15, it is clear that the deceased was immediately shifted to Tarikere Hospital where P.W.8 was treated at the first instance. The deceased had sustained head injuries. Hence, he was referred to higher centre. P.W.15 conducted surgery when he found the blood clots. Ex.P.17 – death summary is also clear that he was subjected to surgery on Rt.Parietal craniotomy and evacuation of large SDH and ICH done under general anesthesia on 5.8.2012. Hence, it is clear that on the very same day at about 10.44 p.m., the deceased was admitted to Nanjappa Hospital. Hence, it is clear that nature of injuries suggested that he had sustained head injuries. Insofar as case of death is concerned, there is no dispute. Death was due to head injury. No doubt in Ex.P.6, doctor – P.W.8 mentioned that fresh abrasion was present over the front of middle of forehead when the deceased was taken to the hospital, immediately after the incident. Merely mentioning the abrasion was present over the front of middle of forehead, the Court cannot come to a conclusion that it was a simple injury and opinion is specific that he had sustained the head injury and blood clot was not disputed and surgery was conducted.
42. Having considered the evidence of P.Ws.1 to 3, 5, 7 and 13, doctor – P.Ws.8, 11, 12 and 15, it is clear that he succumbed on account of the head injury. We have already pointed out that the very contention of the appellants/accused counsel that the prosecution has suppressed the injuries sustained to the accused takes away the case of the prosecution, cannot be accepted. We have already observed that the defence of the accused throughout in the cross-examination is that P.W.5 had assaulted him and no doubt the accused also took treatment in the hospital. But the principle laid down in the judgments referred supra are not applicable to the facts of the case on hand. It is not the case of the defence that the deceased only assaulted him and instead their defence is that P.W.5 assaulted him. Hence, the question of private defence also does not arise and the principles laid down in the judgments referred supra do not come to the aid of the defence. Merely because the accused has sustained the injuries, the accused cannot take the benefit of the same. If it is the contention of the defence that the deceased only assaulted him, then it would have been the suppression by the prosecution and that is not the case. The accused also has not given any complaint against P.W.5 and no case has been registered. Hence, we do not find any error committed by the Trial Court in appreciating the evidence that the accused only committed the murder of the deceased and it is a homicidal death.
43. The other contention of the accused as well as the complainant is that the Trial Court ought not to have convicted the accused for the offence punishable under Section 304 Part I of Indian Penal Code. No doubt, both the counsel have contended that bringing the case within the purview of Section 304 Part I of Indian Penal Code is erroneous. The counsel appearing for the accused also relied upon the judgment of the Apex Court in the case of PIRTHI (supra) with regard to sentence. The said case is also not applicable to the case on hand. In the said case, the Apex Court has taken note of medical opinion. The injuries only to the testicles was not direct cause of death. It is also taken note that the treatment was given for two days and the deceased was admitted in the hospital later on. Unfortunately, in the meanwhile, gangrene developed and hence invoked Section 323 of Indian Penal Code. In the case on hand, there was no delay and immediately he was taken to hospital and thereafter on the advise of the doctor he was shifted to higher centre and surgery was conducted. Hence, the contention that Section 323 of Indian Penal Code can be invoked, cannot be accepted.
44. The other contention of the complainant’s counsel is that the Court below has committed an error in invoking Section 304 Part I of Indian Penal Code. This Court has to examine whether it is a case of Section 302 or Section 304 Part I of Indian Penal Code. No doubt, in the evidence of the prosecution, it is clear that first galata had taken place when the accused demanded Rs.100/- from the deceased and the same was pacified. Thereafter, he followed the deceased and again assaulted him with the stone. It has to be noted that the incident had taken place only for trivial issue of payment of Rs.100/- to consume alcohol by the accused. It is also important to note that all the witnesses have deposed that the accused suddenly took the stone, which was lying on the spot and assaulted with the same. The Court below also has observed the single blow on the head. It is rightly pointed out by the complainant counsel that the Court below had mentioned in the judgment that the same is not a vital part and the Court below failed to take note of the injuries sustained to the head. When the injury was sustained to the head, it cannot be held that it is not a vital part. The complainant counsel also brought to our notice that the incident was not in the spur of movement, as observed by the Trial Court. No doubt, the assaulting of the deceased was taken place in a different place and earlier incident was pacified by the witnesses, who were present at the spot. Thereafter, at a distance of 500 feet, injury had caused by taking the stone near the gate of the deceased. Hence, it cannot be held that it was a spur of movement. It has to be noted that the accused assaulted with the stone and the same is a single blow. But it is held that the deceased was dragged after the assault. As a result, he has sustained the other injuries, which are 12 in number. If he really intended to take away the life, he would have inflicted more injuries, as observed by the Trial Court.
45. Considering the material on record and also the circumstances under which the incident had taken place, it is evident that there was no prior enmity as elicited in the cross-examination of prosecution witnesses. Only due to trivial issues between the parties, the incident had taken place and the major blow is with the stone on the head of the deceased. We do not find any pre-meditation When such being the case, we do no accept the contention of the complainant counsel that the case does not come within the purview of 304 Part I of Indian Penal Code. The Court below has evaluated the circumstances and nature of injuries and also taken note of the single blow on the head and rightly came to the conclusion that it comes within the purview of Section 304 Part I of Indian Penal Code.
46. However, insofar as the sentence is concerned, the Trial Court awarded seven years rigorous imprisonment and directed to pay a fine of Rs.5,00,000/- and in default, to undergo simple imprisonment for a period of two years for the offence under Section 304 Part I of the Indian Penal Code. Having considered the sentence, though sentence of seven years is meagre, but taking note of Sections 357 and 357A of Code of Criminal Procedure, a compensation of Rs.5,00,000/- has been awarded. As such, the very contention of the complainant counsel that the sentence awarded is meagre and shocks the conscience of the Court, cannot be accepted. Hence, we do not find any merit in both the appeals.
47. In view of the discussions made above, we pass the following:
ORDER Both the appeals are dismissed.
Sd/- Sd/-
JUDGE JUDGE MD